Gay unions must be treated equally

The Lunar New Year holiday is a time for family get-togethers, but in Taiwan, some people who want to form a family are unable to do so.

On Nov. 24 last year, several referendums proposed by the Coalition for the Happiness of Our Next Generation against same-sex marriage were held. In response to the Central Election Commission’s requirement that a referendum must not contravene the Constitution, the coalition phrased Referendum No. 10 as: “Do you agree that the Civil Code should define marriage as the union between a man and a woman?”

In compliance with the intent of Constitutional Interpretation No. 748 — which supports same-sex marriage — the proposal did not exclude homosexuals from entering into marriage based on other laws. However, after the vote, the coalition has said that the result of the referendum has refuted the legitimacy of same-sex marriage. This is clearly contradictory to the coalition’s own referendum proposal.

At a time when the Executive Yuan is drafting a special same-sex marriage act, the coalition and other anti-LGBT groups have launched yet another lobbying campaign trying to replace a “same-sex marriage act” with a “same-sex cohabitation act.” Under much pressure, the Cabinet reportedly might propose a “same-sex partnership act,” which runs against the “freedom of marriage” declared by the Council of Grand Justices.

The coalition is not only advocating the use of non-marriage-related terms such as “partners” or “family members” when dealing with same-sex relationships — a clear contravention of the constitutional interpretation — but it is also using this disinformation to mislead the public.

If the executive and legislative branches replace same-sex marriage with non-marriage-related terminology, because they feel the pressure of next year’s legislative and presidential elections, they would be showing their contempt for the interpretation issued by the council and the result would be even greater social costs.

The following two points are a solemn reminder to the executive and legislative branches that they must not create a political disaster by passing unconstitutional legislation.

The first is that the coalition’s advocacy of a “same-sex cohabitation act” contravenes the intent of Constitutional Interpretation No. 748 and goes beyond the scope of the referendum. The Cabinet should promptly propose a bill in line with the Constitution.

The coalition has claimed that in the main body of the interpretation, the council permits the legal creation of civil unions outside of the marriage system.

However, as a group of academics who have spent a long time studying, researching and teaching the Constitution and related courses, we believe that such claims are wrong.

Based on the most fundamental literal interpretation of the interpretation, the word “marriage” in the term “marriage freedom” in the original text is not merely restricted to a union for the purpose of living together, as it also includes various legal aspects of marriage.

As “union for the purpose of living together” does not have any specific legal meaning, if the coalition attempts to confuse this with the definition of “marriage,” it does not even satisfy the most fundamental literal interpretation of the interpretation.

Moreover, the coalition has claimed that marriage and a union for the purpose of living together are separated in the interpretation, with the former ruled by the Civil Code, while the latter should be governed by a special law. This is a vicious distortion.

The council offered an explanation when considering legislative idleness in its reasoning, saying: “If the amendment or enactment of relevant laws is not completed within the said two-year time frame, two persons of the same sex who intend to create a permanent union of intimate and exclusive nature for the purpose of living a common life may, pursuant to the provisions of the Marriage Chapter, apply for marriage registration to the authorities in charge of household registration, by submitting a document signed by two or more witnesses. Any such two persons, once registered, shall be accorded the status of a legally recognized couple, and then enjoy the rights and bear the obligations arising on couples.”

If this is not marriage, then what is?

The coalition should stop spreading erroneous legal opinions based on fragments of the interpretation taken out of context. Regardless of whether the Civil Code is amended or a special law is written, same-sex marriage must be marriage, and not same-sex cohabitation or partnership.

The second point is that the executive and legislative branches should abide by the interpretation issued by the council, because they are obliged to be loyal to the Constitution. Winning or losing elections is part of the normalcy in democratic societies, but if that changes and support for the constitutional system is abandoned, democracy loses its meaning.

As the Judicial Yuan said in a statement after the vote: “The referendums were merely a vote on the legal level, it must not contravene the Judicial Yuan’s interpretations of the Constitution.”

The outcome of the referendum at most makes the scope of legislation more concrete and it cannot override the equal protection of marriage freedom granted to homosexuals by Constitutional Interpretation No. 748. Otherwise, the commission would not have had to order the coalition to adjust its referendum proposal in the first place. As the proposal must abide by the Constitution, so must the interpretation of the outcome.

Even if the government really was to choose to write a special law for homosexuals instead of amending the Civil Code, it would still have to protect their right to marriage freedom. For the sake of equal protection, all rights and obligations in the special law must be the same as those in the Civil Code. Authorities must not create another system than marriage that treats homosexuals differently by treating them as second-class citizens in contravention of the Constitution.

The authors are professors at Academia Sinica’s Institutum Iurisprudentiae, National Chengchi University’s Department of Law, National Taipei University’s Department of Law, National Taiwan University’s Department of Law, National Taiwan University’s Graduate Institute of National Development and Shih Hsin University’s Graduate Institute for Gender Studies.

Translated by Eddy Chang

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